California Will No Longer Allow Payments to Induce People to Vote to Boost Turnout (Sometimes Selectively) in State Elections

vote buying

Back in my 2000 California Law Review article, Vote Buying, I wrote about how some jurisdictions, such as California permitted payments for people to register or to vote (so long as those payments were not made to induce people to vote for or against a particular candidate or ballot measure). Such payments were only allowed when there were no federal candidates on the ballot, because payments for turnout violate federal law.

Now, in the wake of Elon Musk’s controversial (and I’ve argued, illegal) lotteries to get people to vote in the 2024 elections, California has passed a new law, to be codified in Elections Code section 18107.5 that bans the practice of payments for turnout. The new law reads in part:

(a)(1)A person who knowingly or willfully pays or offers to pay money or other valuable consideration to another person with the intent to induce the person to vote or to register to vote, or where the payment is contingent upon whether the person voted or the persons voter registration status, is guilty of a crime.

(2)For purposes of paragraph (1), other valuable consideration includes, but is not limited to, a chance to win a lottery or similar prize-drawing contest.

(3)This section does not apply to any of the following:

(A)Transportation to or from a voting location.

(B)Compensation provided to an individual by a governmental entity.

(C)Granting time off to an employee to vote.

(b)A violation of subdivision (a) shall be punishable by a fine of up to ten thousand dollars ($10,000), by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or in a county jail not exceeding one year, or by both that fine and imprisonment.

For some reason, the law did not amend or repeal the old California law that implicitly allowed payments for turnout.

Here’s my analysis from the California Law Review on the experience with such payments for turnout:

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“Congresswoman-in-limbo Adelita Grijalva on the dilemma she faces”

legislation and legislatures

WaPo:

Every office along the second floor of the Longworth House Office Building looks welcoming, flags lined up nicely, most with visitor sign-in logs out front.

Except for the one where the plaque out front reads, “Representative Adelita S. Grijalva, Arizona” — but the doors are locked, with newspapers and internal mail piling up out front.

Grijalva’s (D)offices — both in Washington and back in her district — are closed, leaving the constituents of Arizona’s 7th Congressional District without representation or a single staffer who can answer questions as the government shutdown stretches into its second week.

The phone lines do not even have a courtesy message telling constituents how to reach out to Arizona’s senators for help. The voice answering the phone in the Tucson office is a recording of Grijalva’s father, the late Raúl Grijalva (D). He’s the 11-term lawmaker whose death in March prompted the special election that his daughter won by almost 40 percentage points.

Despite Grijalva’s victory more than two weeks ago, House Republican Speaker Mike Johnson (R-Louisiana) has refused to swear her into office.

After a fleeting effort last week to get sworn in, she has decamped back to Tucson to mount a media campaign designed to shame the speaker into letting her make history as Arizona’s first Latina in Congress.

“I have the will and responsibility of almost 800,000 people to represent, and I need to fight for them. And so I’m going to make this as public as possible,” she said during a videoconference interview Tuesday. “I’m going to continue to highlight the hypocrisy and the fact that this is dangerous. It’s dangerous for our democracy.”…

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“Justices Appear Open to Challenge of Mail-In Ballot Rules by Illinois Politician”

campaigns, Supreme Court

NYT:

A majority of the Supreme Court appeared sympathetic on Wednesday to arguments by an Illinois congressman that political candidates should be able to challenge their states’ election laws.

During the approximately two-hour argument, the justices grappled with what political candidates, particularly those with nearly guaranteed success in an election, must show in order to bring a legal challenge to election rules.

The argument centered on a threshold question: What is the legal standard candidates must meet to prove they have been harmed by a rule?

If the court were to endorse an expansive definition for who can bring such challenges, it could clear the way for a flood of litigation against all sorts of state election rules, particularly from Republicans who have argued that the rules in some states favor Democrats….

Many of the conservative justices signaled support for arguments by Paul D. Clement, who represented Mr. Bost.

Chief Justice John G. Roberts Jr. appeared receptive to the idea that candidates, regardless of their chances of victory in an election, should be able to bring lawsuits. If not, the chief justice said, it could be “a potential disaster” if courts felt required to weigh whether a candidate might win or lose.

Justice Brett M. Kavanaugh echoed this concern, cautioning that federal courts not be reliant on a rule requiring “prognostication” on an election outcome.

But several justices also wrestled with the implications of carving out a new rule specific to Mr. Bost’s case, a worry that Justice Amy Coney Barrett described as fashioning “bespoke rules” for different types of litigants….

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“VP Vance to visit Indiana Friday to meet with Senate GOP amid redistricting standoff”

redistricting

Indiana Capital Chronicle:

Vice President JD Vance is slated to return to the Hoosier State on Friday to meet with Indiana’s Senate Republican caucus as redistricting deliberations appear to be at an impasse.

Multiple sources, including two Republican state senators, confirmed to the Indiana Capital Chronicle that Vance will meet with lawmakers in Indianapolis. The visit comes as state GOP legislators weigh a special session for mid-cycle redistricting — a move that has split some members of the party.

Later in the day, House Republicans were also invited to join the meeting.

Sen. Sue Glick, R-LaGrange, told the Capital Chronicle most lawmakers she’s spoken with aren’t eager to reopen the maps.

“I think everybody wants to keep an open mind,” she said. “But, you know, the general attitude all along has been that nobody has much of an appetite for redistricting. I mean, we thought the maps we did before were fair.” …

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“It’s Time to Reform the National Emergencies Act”

Uncategorized

At the NYU Democracy Project, William Galston publishes an essay today on reining in presidential emergency powers. Here’s an excerpt:

The most important and urgent constitutional issue of our era is the relentless growth of executive power under presidents of both parties, a process that has moved into overdrive since the beginning of President Trump’s second term. Some of this reflects the near collapse of Congress as a functioning branch of government, preventing progress on key issues such as immigration and tempting presidents to achieve by fiat what they cannot attain through legislation.  The Supreme Court’s embrace of theories such as the “unitary executive” has accelerated the expansion of presidential power.  But there is another dimension of this development that deserves more attention than it has received.

Unlike many documents of its kind, the U.S. Constitution gives the executive no explicit emergency powers.  But there are many circumstances in which only the president can move with the speed and ability to mobilize resources that the situation requires.  In response, Congress from the beginning of the republic has passed legislation delegating emergency powers to the president.  There are now more than 130 such powers, some of which have been on the books for more than two centuries.  Many are loosely drafted, inviting abuse….

There is only one solution—a genuinely bipartisan effort to reform the National Emergencies Act.  During President Trump’s first term, not a time noted for concord between the parties, such an effort received broad support across party lines.  It would have terminated every presidentially declared emergency after 30 days unless Congress voted to approve the declaration and would have prohibited the use of filibusters to stall such action.  In the fall of 2024, a similar measure was approved unanimously in the House Transportation and Infrastructure Committee, and in the Senate Homeland Security and Governmental Affairs Committee by a vote of 13 to 1.  If this measure had reached the floor, it might well have passed.

Although this initiative fell short of the finish line, Congress has shown that it can come together when threats to the stability of the constitutional order become too pressing to ignore.  After the extraordinary disruption of the electoral process in the wake of the 2020 election, Democrats and Republicans came together in 2022 to enact a sweeping reform of the Electoral Count Act, a dangerously ambiguous law enacted in response to the disputed election of 1876.  Among other improvements, the reform made it clear that the vice-president’s role in counting the votes of the Electoral College is purely ceremonial and leaves no role for the vice president to exercise independent judgment to resolve disputes. The bill passed with a comfortable majority in the House and a super-majority of 68 to 29 in the Senate.

It’s time to try again to rein in the emergency powers that constitute a cache of unexploded ordnance at the heart of our constitutional order. This will be challenging, but it’s not Mission Impossible.

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